RELIGION IN THE PUBLIC SCHOOLS - University of North ...

[Pages:17]RELIGION AND THE COURTS: THE PILLARS OF CHURCH-STATE LAW

RELIGION IN THE PUBLIC SCHOOLS

MAY 2007

Nearly a half-century after the Supreme Court issued its land-

mark ruling striking down school-sponsored prayer, Americans continue to fight over the place of religion in public schools. Indeed, the classroom has become one of the most important battlegrounds in the broader conflict over religion's role in public life.

Some Americans are troubled by what they see as an effort on the part of federal courts and civil liberties advocates to exclude God and religious sentiment from public schools. Such an effort, these Americans believe, infringes upon the First Amendment right to the free exercise of religion.

Civil libertarians and others, meanwhile, voice concern that conservative Christians are trying to impose their values on students of all religious stripes. Federal courts, the civil libertarians point out, have consistently interpreted the First Amendment's prohibition on the establishment of religion to forbid state sponsorship of prayer and most other religious activities in public schools.

Despite that long series of court decisions, polls show that large numbers of Americans favor looser, not tighter, limits on religion in public schools. According to an August 2006 survey by the Pew Research Center, more than two-thirds of Americans (69%) agree with the notion that "liberals have gone too far in trying to keep religion out of the schools and the government." And a clear majority (58%) favor teaching biblical creationism along with evolution in public schools.

Conflicts over religion in school are hardly new. In the 19th century, Protestants and Catholics frequently fought over Bible reading and prayer in public schools.The disputes then were over which Bible and which prayers were appropriate to use in the classroom. Some Catholics were troubled that the schools' reading materials included the King James version of the Bible, which

TABLE OF CONTENTS

Prayer and the Pledge . . . . . . . . . . . . . . . . . . 3 School Prayer . . . . . . . . . . . . . . . . . . . . . . . 3 The Pledge of Allegiance . . . . . . . . . . . . . 4

School Officials and Student Speech . . . . . 6

Religion in the Curriculum . . . . . . . . . . . . 7 Creationism and Evolution . . . . . . . . . . . 7 Study of the Bible . . . . . . . . . . . . . . . . . 8 Holiday Programs . . . . . . . . . . . . . . . . . . . 9 Multiculturalism . . . . . . . . . . . . . . . . . . . . 9

Rights in and out of the Classroom . . . . . . 9 Rights of Students . . . . . . . . . . . . . . . . . 10 Rights of Parents . . . . . . . . . . . . . . . . . . 11 Rights of Teachers and Administrators . . . . . . . . . . . . . . . . . . . 13

Religious Activities and the Principle of Equal Access . . . . . . . . . . . . . . . . . . . 14

was favored by Protestants. In 1844, fighting broke out between Protestants and Catholics in Philadelphia; a number of people died in the violence and several Catholic churches were burned. Similar conflicts erupted during the 1850s in Boston and other parts of New England. In the early 20th century, liberal Protestants and their secular allies battled religious conservatives over whether students in biology classes should be taught Charles Darwin's theory of evolution.

The Supreme Court stepped into those controversies when it determined, in Cantwell v. Connecticut (1940) and Everson v. Board of Education of Ewing Township (1947), that the First Amendment's Free Exercise Clause and Establishment Clause applied to the states.The two clauses say, "Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Before those two court decisions, courts had applied the religion clauses only to actions of the federal government.

Soon after the Everson decision, the Supreme Court began specifically applying the religion clauses to activities in public schools. In its first such case, McCollum v. Board of Education (1948), the high court invalidated the practice of having religious instructors from different denominations enter public schools to offer religious lessons during the school day to students whose parents requested them. A key factor in the court's decision was that the lessons took place in the schools. Four years later, in Zorach v. Clauson, the court upheld an arrangement by which public schools excused students during the school day so they could attend religious classes away from school property.

Beginning in the 1960s, the court handed religious conservatives a series of major defeats. It began with the landmark 1962 ruling, in Engel v.Vitale, that school-sponsored prayer, even if it were nonsectarian, violated the Establishment Clause. Since then, the Supreme Court has pushed forward, from banning organized Bible reading for religious and moral instruction in 1963 to prohibiting prayers at high school football games in 2000.

In these and other decisions, the court has repeatedly stressed that the Constitution prohibits public schools from indoctrinating children in religion. But it is not always easy to determine exactly what constitutes indoctrination or school sponsorship of religious activities. For example, can a class on the Bible as literature be taught without a bias for or against the idea that the Bible is religious truth? Can students be compelled to participate in a Christmas-themed music program? Sometimes students themselves, rather than teachers, adminis-

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trators or coaches, bring their faith into school activities. For instance, when a student invokes gratitude to God in a valedictory address, or a high school football player offers a prayer in a huddle, is the school legally responsible for their religious expression?

The issues are complicated by other constitutional guarantees. For instance, the First Amendment also protects freedom of speech and freedom of association. Religious groups have cited those guarantees in support of student religious speech and in efforts to obtain school sponsorship and resources for student religious clubs.

[T]he court has repeatedly stressed that the Constitution prohibits public schools from indoctrinating children in religion. But it is not always easy to determine exactly what constitutes indoctrination or school sponsorship

of religious activities.

The right of a student or student club to engage in religious speech or activities on school property may, however, conflict with other protections, such as the right of students to avoid harassment. In one recent case, for example, a federal appeals court approved a high school's decision to prohibit a student from wearing a T-shirt containing a biblical passage condemning homosexuality. Because the student had graduated by the time the Supreme Court granted his appeal, the Supreme Court ordered the lower court to vacate its ruling and dismiss the case.

In another instance of conflicting rights, some student religious groups want the right to exclude students who do not share the groups' beliefs, specifically on questions of sexuality. For example, the Christian Legal Society, which has chapters in many law schools, is embroiled in litigation over its policy that only students who believe that sex outside of heterosexual marriage is a sin can serve in leadership positions.

As these more recent conflicts show, public schools remain a battlefield where the religious interests of parents, students, administrators and teachers often clash.The conflicts affect classroom curricula, high school football games, student clubs, graduation ceremonies ? and the lives of everyone with an interest in public education.

Prayer and

the Pledge

School Prayer The most enduring and controversial issue related to school-sponsored religious activities is classroom prayer. In Engel v.Vitale (1962), the Supreme Court held that the Establishment Clause prohibited the recitation of a school-sponsored prayer in public schools. Engel involved a simple and seemingly nonsectarian prayer composed especially for use in New York's public schools. In banning the prayer exercise entirely, the court did not rest its opinion on the grounds that unwilling students were coerced to pray; that would come much later. Rather, the court emphasized what it saw as the wrongs of having the government create and sponsor a religious activity.

The following year, the high court extended the principle outlined in Engel to a program of daily

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Bible reading. In Abington School District v. Schempp, the court ruled broadly that school sponsorship of religious exercises violates the Constitution. Schempp became the source of the enduring constitutional doctrine that all government action must have a predominantly secular purpose ? a requirement that, according to the court, the Bible-reading exercise clearly could not satisfy. By insisting that religious expression be excluded from the formal curriculum, the Supreme Court was assuring parents that public schools would be officially secular and would not compete with parents in their children's religious upbringing.

With Engel and Schempp, the court outlined the constitutional standard for prohibiting schoolsponsored religious expression, a doctrine the court has firmly maintained. In Stone v. Graham (1980), for instance, it found unconstitutional a Kentucky law requiring all public schools to post a copy of the Ten Commandments. And in Wallace v. Jaffree (1985), it overturned an Alabama law requiring public schools to set aside a moment each day for silent prayer or meditation.

School sponsorship of student-led prayer has fared no better. In 2000, the Supreme Court ruled in Santa Fe Independent School District v. Doe that schools may not sponsor student-recited prayer at high school football games.

More sweeping in its consequences is Lee v. Weisman (1992), which invalidated a school-sponsored prayer led by an invited clergyman at a public school commencement in Providence, R.I.The court's 5-4 decision rested explicitly on the argument that graduating students were being forced to participate in a religious ceremony.The case effectively outlawed a practice that was customary in many communities across the country, thus fueling the conservative critique that the Supreme Court was inhospitable to public expressions of faith.

Supreme Court Case

Lee v. Weisman (1992)

Majority: Kennedy Souter O'Connor Stevens Blackmun

Minority: Rehnquist White Scalia Thomas

So far, lower appellate courts have not extended the principles of the school prayer decisions to university commencements (Chaudhuri v.Tennessee, 6th U.S. Circuit Court of Appeals, 1997; Tanford v. Brand, 7th Circuit, 1997).The 4th Circuit, however, found unconstitutional the practice of daily prayer at supper at the Virginia Military Institute. In that case, Mellen v. Bunting (2003), the appellate court reasoned that VMI's military-like environment tended to coerce participation by cadets.The decision was similar to an earlier ruling by the U.S. Circuit Court of Appeals for the District of Columbia, which found unconstitutional a policy of the U.S. service academies that all cadets and midshipmen attend Protestant, Catholic or Jewish chapel services on Sunday (Anderson v. Laird, 1972). For the court, the key element was the service academies' coercion of students to attend the religious activity.

The Pledge of Allegiance

In 1954, Congress revised the Pledge of Allegiance to refer to the nation as "under God," a phrase that has since been recited by generations of schoolchildren. In 2000, Michael Newdow filed suit challenging the phrase on behalf of his daughter, a public school student in California. Newdow argued that the words "under God" violated the Establishment Clause because they transformed the pledge into a religious exercise.

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Religion in the Public Schools: Significant Supreme Court Rulings

Pierce v. Society of Sisters (1925) Guaranteed parents the right to enroll their children in private schools, whether religious or secular.

West Virginia State Board of Education v. Barnette (1943) Upheld right of students who were Jehovah's Witnesses to refuse to salute the American flag, affirming right of students to resist compulsory recitation of official orthodoxy.

McCollum v. Board of Education (1948) Prohibited use of public schools for voluntary, privately funded religious classes as violation of the Establishment Clause.

Zorach v. Clauson (1952) Allowed public schools to excuse students to attend religious classes away from school property.

Engel v. Vitale (1962) Prohibited recitation of a school-sponsored, nonsectarian prayer as violation of Establishment Clause ban on government creating and sponsoring a religious activity.

Abington School District v. Schempp (1963) In prohibiting a program of daily Bible reading in public schools, ruled that government action must have a predominantly secular purpose.

Epperson v. Arkansas (1968) Overturned statute prohibiting the teaching of evolution, on basis that government sought to ban material objectionable to a particular religion.

Wisconsin v.Yoder (1972) In case involving Old Order Amish, ruled that the Free Exercise Clause limited the state's power to require children to attend school.

Widmar v. Vincent (1981) Ruled that a state university could not exclude a student group from using school buildings on the basis of the group's religious viewpoint.

Edwards v. Aguillard (1987) Overturned statute requiring teaching of both evolution and creationism, concluding that the law impermissibly promoted a particular religious belief.

Board of Education v. Mergens (1990) Upholding the Equal Access Act, ruled that high schools, like universities, had an obligation to provide equal access to public facilities to all groups, including religious organizations.

Lee v. Weisman (1992) Prohibited school-sponsored prayer delivered by invited clergy at a school commencement, on the grounds that graduating students were being forced to participate in a religious ceremony.

Rosenberger v. University of Virginia (1995) Ruled that the Free Speech Clause required the state university to provide the same financial subsidy for a student Christian publication as for all other publications.

Santa Fe Independent School District v. Doe (2000) Ruled that public schools may not sponsor studentrecited prayer at athletic contests or other school events.

Tinker v. Des Moines School District (1969) Upholding students' right to wear armbands protesting the Vietnam War, ruled that school authorities cannot suppress expression unless it causes material disruption or violates the rights of others.

Good News Club v. Milford Central School District (2001) Held that the Free Speech Clause prohibited an elementary school from excluding an evangelical Christian program from a list of approved after-school activities.

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The case, Elk Grove Unified School District v. Newdow, reached the Supreme Court in 2004, but the justices did not ultimately decide whether the phrase was acceptable. Instead, the court ruled that Newdow lacked standing to bring the suit because he did not have legal custody of his daughter. In concurring opinions, however, four justices expressed the view that the Constitution permitted recitation of the pledge ? with the phrase "under God" ? in public schools.

Since then, the issue has not again reached the Supreme Court but is still being litigated in the lower courts. In Myers v. Loudoun County Public Schools (2005), the 4th U.S. Circuit Court of Appeals upheld the reciting of the pledge in Virginia, but a U.S. district court in California ruled the other way in a new suit involving Michael Newdow and other parents.The court ruling in California, Newdow v. Congress of the United States (2005), is on appeal in the 9th U.S. Circuit Court of Appeals.

School

Officials and

Student Speech

The courts have drawn a sharp distinction between officially sponsored religious speech, such as a benediction by an invited clergyman at a commencement ceremony, and private religious speech by students.The Supreme Court made clear in Lee v.Weisman (1992) that a clergyman's benediction at a public school event would violate the separation of church and state. Judges usually reach that same conclusion when school officials cooperate with students to produce student-delivered religious messages. But federal courts are more divided in

The courts have drawn a sharp distinction between officially

sponsored religious speech, such as a benediction by an invited

clergyman at a commencement ceremony, and private religious

speech by students.

cases involving students acting on their own to include a religious sentiment or prayer at a school commencement or a similar activity.

Some courts, particularly in the South, have upheld the constitutionality of student-initiated religious speech, emphasizing the private origins of this kind of religious expression. As long as school officials did not encourage or explicitly approve the contents, those courts have upheld religious content in student commencement speeches.

In Adler v. Duval County School Board (1996), for example, the 11th U.S. Circuit Court of Appeals approved a system at a Florida high school in which the senior class, acting independently of school officials, selected a class member to deliver a commencement address. School officials neither influenced the choice of speaker nor screened the speech. Under those circumstances, the appeals court ruled that the school was not responsible for the religious content of the address.

Other courts, however, have invalidated school policies that permit student speakers to include religious sentiments in graduation addresses. One leading case is ACLU v. Black Horse Pike Regional

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Board of Education (1996), in which the senior class of a New Jersey public high school selected the student speaker by a vote without knowing in advance the contents of the student's remarks.The 3rd U.S. Circuit Court of Appeals nevertheless ruled that the high school could not permit religious content in the commencement speech.The court reasoned that students attending the graduation ceremony were as coerced to acquiesce in a student-led prayer as they would be if the prayer were offered by a member of the clergy, the practice forbidden by Weisman in 1992. (Supreme Court Justice Samuel Alito, who was then a member of the appeals court, joined a dissenting opinion in the case, arguing that the graduating students' rights to religious and expressive freedom should prevail over the Establishment Clause concerns.)

Similarly, in Bannon v. School District of Palm Beach County (2004), the 11th U.S. Circuit Court of Appeals ruled that Florida school officials were right to order the removal of student-created religious messages and symbols from a school beautification project.The court reasoned that the project was not intended as a forum for the expression of students' private views but rather as a school activity for which school officials would be held responsible.

Religion in the

Curriculum

The Supreme Court's decisions about officially sponsored religious expression in schools consistently draw a distinction between religious activities such as worship or Bible reading, which are designed to inculcate religious sentiments and values, and "teaching about religion," which is both constitutionally permissible and educationally appropriate. On several occasions, members of the

court have suggested that public schools may teach "the Bible as literature," include lessons about the role of religion and religious institutions in history or offer courses on comparative religion.

Creationism and Evolution

Courts have long grappled with attempts by school boards and other official bodies to change the curriculum in ways that directly promote or denigrate a particular religious tradition. Best known among these curriculum disputes are those involving the conflict between proponents and opponents of Darwin's theory of evolution, which explains the origin of species through evolution by means of natural selection. Opponents favor teaching some form of creationism, the idea that life came about as described in the biblical book of Genesis or evolved under the guidance of a Supreme Being. A recent alternative to Darwinism, intelligent design, asserts that life is too complex to have arisen without divine intervention.

The Supreme Court entered the evolution debate in 1968, when it ruled, in Epperson v.Arkansas, that Arkansas could not eliminate from the high school biology curriculum the teaching of "the theory that mankind descended from a lower order of animals." Arkansas' exclusion of that aspect of evolutionary theory, the court reasoned, was based on a preference for the account of creation in the book of Genesis and thus violated the state's constitutional obligation of religious neutrality. Almost 20 years later, in Edwards v.Aguillard (1987), the Supreme Court struck down a Louisiana law that required "balanced treatment" of evolution science and "Creation science," so that any biology teacher who taught one also had to teach the other.The court said the law's purpose was to single out a particular religious belief ? in this case, biblical creationism ? and promote it as an alternative to accepted scientific theory.The court also pointed to evidence that the legislation's sponsor hoped that the balanced

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Supreme Court Case

Edwards v. Aguillard (1987)

Majority: Brennan White Marshall

Blackmun Powell Stevens O'Connor

Minority: Rehnquist Scalia

ing Bible study. Although the Supreme Court has occasionally referred to the permissibility of teaching the Bible as literature, some school districts have instituted Bible study programs that courts have found unconstitutional. Frequently, judges have concluded that these courses are thinly disguised efforts to teach a particular understanding of the New Testament.

treatment requirement would lead science teachers to abandon the teaching of evolution.

Lower courts have consistently followed the lead of Epperson and Edwards. As a result, school boards have lost virtually every fight over curriculum changes designed to challenge evolution, including disclaimers in biology textbooks. One of the most recent and notable of these cases, Kitzmiller v. Dover Area School District (2005), involved a challenge to a Pennsylvania school district's policy of informing high school science students about intelligent design as an alternative to evolution. After lengthy testimony from both proponents and opponents of intelligent design, a federal district court in Pennsylvania concluded that the policy violates the Establishment Clause because intelligent design is a religious, rather than scientific, theory.

The Kitzmiller ruling has received an unusually large amount of attention, in part because it is the first decision to address the constitutionality of teaching intelligent design. But Kitzmiller also has been noted for its forceful analysis, and the ruling is likely to be highly influential if and when courts hear other cases involving alternatives to Darwinian evolution.

Study of the Bible Courts have also expended significant time and energy considering public school programs involv-

In a number of these cases, school districts have brought in outside groups to run the Bible study program.The groups, in turn, hired their own teachers, in some cases Bible college students or members of the clergy who did not meet state accreditation standards.

For a public school class to study the Bible without violating

constitutional limits, the class would have to include critical rather than devotional readings and allow open inquiry into the history and content

of biblical passages.

Such Bible study programs have generally been held unconstitutional because, the courts conclude, they teach the Bible as religious truth or are designed to inculcate particular religious sentiments. For a public school class to study the Bible without violating constitutional limits, the class would have to include critical rather than devotional readings and allow open inquiry into the history and content of biblical passages.

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